3. That the value of the rents and profits of the said premises from the said 18 and while the plaintiff has been day of excluded therefrom by the defendant is Rs. Wherefore plaintiff prays judgment: 1 For possession of said premises; 2 For Rs. 3 For Rs. , compensation for withholding the same; the value of the rents and profits thereof, and the costs of suit. Immoveable Property Defined.-In the General Clauses Act, 1868, immoveable property is declared to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to any thing attached to the earth; and, for the purposes of the Registration Act, 1877, immoveable property is, by section 3 of that Act, defined as including lands, buildings, hereditary allowances, rights to ways, lights, ferries, or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to any thing which is attached to the earth, but not standing timber, growing crops, nor grass. Necessary Averments.-The date of dispossession should be stated as accurately as possible, but it is not sufficient ground for dismissing a suit, that the exact date of dispossession stated in the plaint was not proved.† A possession on the part of one party, which is not shown to have commenced in wrong, can only be disturbed by distinct proof of a superior title in the other party.‡ Onus Probandi.—In suits for the possession of land, from which the plaintiff alleges that he has been dispossessed, the general rule is, that the burden of proof is upon the plaintiff to show possession and dispossession within twelve years, and this rule is not intended to be interfered with by the Privy Council in Radha Gobind v. Inglis.|| Evidence of possession within twelve years is not alone sufficient to throw upon the defendant the burden of proving his title to the land, nor is it sufficient to entitle plaintiff to a decree,** there must be evidence of dispossession by the defendant. Where the evidence is equally balanced, the presumption is in favour of the defendant.‡‡ * Boydonath Surmah v. Ojan Bibee, 11 W. R. 238. + Boga Kolita v. Kayasta, 24 W. R. 357. Armugum Chetty v. Perriyanan, 25 W. R. 81. § Bhoothnath Chatterjee v. Kedarnath Banerjee, I. L. R., 9 Cal. 125; Mahomed Ali Khan.v. Khaja Abdul Gunny, I. L. R., 9 Cal. 774; 12 C. L. R. 257. 7 C. L. R. 364. ¶ Mahomed Ali Khan v. Khaja Abdul Gunny, supra; Debi Churn Boido v. Issur Chunder Manjee, I. L. R., 9 Cal. 39; 11 C. L. R. 342; Wise v. Amirunnissa Khatoon, L. R., 7 I. A. 81; 6 C. L. R. 249. ** Irtaza Hossein v. Bany Mistry, I. L. R., 9 Cal. 130; 11 C. L. R. 393. ++ Mahomed Bux v. Abdool Kareem, 20 W. R. 458. Huree Mohun v. Kootessur Gope, 24 W. R. 318. Mesne-profits.-The definition of “ mesne-profits" given in section 211 of the Civil Procedure Code is as follows: Mesne-profits of property mean those profits which the person in possession of such property actually received, or might with ordinary diligence have received, therefrom, together with interest on such profits. So, a person not actually cultivating, but receiving rents, is accountable, not only for the sums actually collected, but for what it might be supposed he could have collected ;* and the usual ṛule is to ascertain what would be a fair and reasonable rent for the `Jand, if the same had been let to a tenant during the period of the unlawful occupation of the wrong-doer ;† and this, indeed, is the only rule on which to proceed where the person in wrongful possession has himself occupied and cultivated it; especially if the cultivation is carried on at a great risk. § But in other cases the wrong-doer is liable for the profits which would have arisen under a like occupation by the plaintiff, for the period that he was out of possession ; and to determine the amount it will be sufficient to shew the profits for the years preceding dispossession, or afterwards ;¶ less the collection charges, but with interest at six per cent per annum.** When the defendants have been in possession as wrong-doers, it lies upon them to shew what were the sums realized as rent during the time of their possession ;†† and they are liable for the mesne-profits whether they enjoyed them instead of the plaintiff or not ‡‡ Interest.-Interest calculated upon yearly rests may, when claimed by the plaintiff in his plaint, be given as an essential portion of the damages which are recoverable by a person wrongfully kept out of possession of immoveable property.§§ Sale Pendente Lite.-Where the Transfer of Property Act, 1882, is in force, a sale of immoveable property made during the pendency of a suit concerning it, by a party to the suit, is void as against other parties to the suit ; but where that Act does not apply, there is nothing to prevent a person from alienating his immoveable * Thakoor Doss Roy Chowdhry v. Nobin Kisto Ghose, 22 W. R. 127; Baboo Lucky Kally Puddo, 4 C. L. R. 60; I. L. R., 4 Cal. 883. Narain Roy ". Rugho Nath Dobey v. Huttee Dobey, 1 Agra H. C. R., Misc., 17. Rani Asmut Kooer v. Maharani Inderjeet Kooer, F. B. R. 1003; Gunga Prosad v. Gojadhar Prosad, I. L. R., 2 All, 651. § Soudaminee Dabee v. Anundo Chunder Haldar, 13 W. R. 37. Teluck Chand Baboo v. Soudaminee Dossee; 23 W. R. 108; Mussamut Rookumee Kooer v. Ram Tuhul Roy, 17 W. R. 156; Nursingh Roy v. John Anderson, 19 W. R. 125; 16 W. R. 21; Gooroo Dyal Mundu e. Baboo Gopal Singh, 24 W. R. 271; Huruck Lall Saha v. Sreenibash Kurmokar, 15 W. R. 428; Promothonath Roy v. Trepoora Soonduree Dabee, 10 W. R. 463; Bhyrub Chunder Mojoomdar v. Haro Prosuuno Buttacharjee Chowdhry, 17 W. R. 257; Lucky Narain v. Kally Puddo Banerjee, I. L. R., 4 Cal. 882. Bhawaneedeen Sahoo v. Mohun Sahoo, 1 All. 273. ** Hurrodurga Chowdhrain v. Sharrat Soondery Dabea, I. L. R., 4 Cal. 674. §§ Brojendro Coomar Roy v. Madhub Chunder Ghose, I. L. R., 8 Cal. 343. F. P.--30 property previous to decree," and there is nothing in sections 23 and 24 of the Contract Act, 1872, to support the opinion that a sale, made with a view to defeat a probable execution, would be a sale with a fraudulent and unlawful object, and therefore void within those sections ;† nor is the owner of property prevented from selling it even after decree, although he knows that the judgment-creditor is seeking to get process of execution against it. Voluntary Alienations.-The Statute 27 Elizabeth, c. 4, provides that all voluntary conveyances, or leases of lands, tenements, or other heriditaments whatsoever, shall be void against subsequent purchasers for valuable consideration, with or without notice; the effect of which is, that, although a person may make a perfectly good voluntary conveyance to another of his land, yet, if he afterwards convey that land for value, even though the latter person knows of the prior voluntary conveyance, he will take in preference to it. A mortgagee and a lessee is a purchaser within the meaning of this Statute. Natural love and affection, although a good, is not a valuable, consideration.T By the Statute 13 Elizabeth, c. 5, all gifts and conveyances of immoveable property, made for the purpose of defeating, hindering, or delaying creditors, are void against them, unless made bond fide upon valuable consideration to some person without notice of the fraud. These Statutes are repealed wherever the Transfer of Property Act, 1882, applies; but the law on the subject has been substantially re-enacted by section 53 of that Act. Benami Purchases.-Where the plaintiff sued to recover land of which he alleged he had been dispossessed, and the defendant, who was in possession, asserted that the plaintiff had bought the land benami for him, it was held that the burden of proving a primâ facie case that the land belonged to the plaintiff was on him.** Bona-fide Purchaser without Notice.-Onus Probandi.—In a suit to recover possession, the onus is on defendant who pleads that he is a bonâ fide purchaser for value, without notice of plaintiff's title, to make out that plea.†† Estoppel. It is a principle of natural equity, which must be universally ap plicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner, the man who so allows the other to hold himself out shall not be permited to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he * Per Phear, J., in Grose v. Amirtamayi, 4 B. L. R., O. C., 1. + Rajan Harji v. Ardeshir Hormusji, I. L. R., 4 Bom. 70. Ram Burun v. Jankee Sahoo, 22 W. R. 473. § Williams, R. P., 13th edition, 79. || Chapman v. Emery, Cowp. 279; Cracknall v. Janson, 11 Ch. Div. 1. Doe v. Manning, 9 East 59. ** Huri Ram v. Raj Coomar Opadhya, 1. L. R., 8 Cal. 758. ++ Bibee Jeebunissa v. Umul Chunder, 18 W. R. 151; Vaideen Seth Sarn v. Luck pathy Royjee, S. P. C. J. 483. had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to put him upon an inquiry, which, if prosecuted, would have led to a discovery of it. Advancement.-The English doctrine of advancement is applicable in India as between a father and daughter both of English extraction, and living under English law. The status of the daughter, under an alleged bonâ-fide purchase made by her father for her advancement when a minor, cannot be set aside except by positive proof that the father merely made use of her name as he would that of any servant or stranger, retaning the beneficial interest in the property for himself.† Effect of Registration.-See the notes under this head in the chapter on Foreclosure of Mortgages (Form No. 327). Correspondence Registration.-Letters between the purchaser and vendor, whereby the acceptance of the purchaser's offer was conditional on his paying earnestmoney, did not fall within clause 2 of section 17 of Act VIII. of 1871, and were ad. missible in evidence, as until the earnest-money was paid, no estate, legal or equitable, in the property, passed to the plaintiff; and correspondence between A and B amounting to a contract for the purchase of a future interest in land did not require registration under Act XX. of 1866.§ Appointment of Receivers Pendente Lite.-The Court may, under section 503 of the Civil Procedure Code, and section 44 of the Specific Relief Act, 1877, appoint a receiver pending the trial of title to property, but will not do so ordinarily, nor unless a strong case has been shown that the property is in danger of being wasted, damaged, or alienated. Limitation. In possessory suits under section 9 of the Specific Relief Act, 1877, the period is six months from the time when the dispossession occurred.|| In a suit before a Court established by Royal Charter, by a mortgagee against a mortgagor for possession, thirty years from the time when any part of the principal or interest was last paid on account of the mortgage.¶ In a suit instituted in a Court not established by Royal Charter, by a mortgagee for possession of immoveable property mortgaged, twelve years from the time when the mortgagor's right to possession determines ** this will apply whether the suit is against the mortgagor himself, or against a third party to whom the rights of the mortgagor have been transferred. * Ramcoomar Koondoo v. McQueen, 18 W. R. 166. + Kishen Koomar v. Stevenson, 2 W. R. 141. Waman Rachmandra v. Dhondiba Krishaji, I. L. R., 4 Bom. 127. § Port Canning Land Co. v. Smith, L. R., 1 I. A. 124; 21 W. R. 315; L. R., 5 P. C. 114. Art. 3, Limitation Act, 1877. Art. 146, Limitation Act, 1877. ** Art. 135, Limitation Act, 1877. In a suit by a purchaser at a private sale for possession of immoveable property sold, when the vendor was out of possession at the date of the sale, twelve years from the time when the vendor is first entitled to possession.* In a suit by a purchaser at a sale in execution of a decree, when the judgmentdebtor was out of possession at the date of the sale, twelve years from the time when the judgment-debtor is first entitled to possession ;† when the judgment-debtor was in possession at the date of sale, twelve years from the date of sale.‡ In suits for possession of immoveable property, when the plaintiff, while in possession, has been dispossessed, or has discontinued the possession, twelve years from the date of dispossession or discontinuance.§ In suits for possession of immoveable property, or any interest therein, not otherwise provided for, twelve years from the time when the possession of the defendant becomes adverse to the plaintiff.|| Form No. 307. BY LANDLORD AGAINST TENANT CLAIMing Right of Re-entry strument in writing, let to the defendant a house and premises No. the the plaintiff, by an in 2. That by the said instrument the defendant contracted to keep the said house and premises in good and tenantable repair. 3. That said instrument also contained a clause of re-entry, entitling the plaintiff to re-enter upon the said house and premises, in case the rent thereby reserved, whether demanded or not, should be in arrear for twenty-one days, or in case the defendant should make default in the performance of any promise on his part to be performed. |